from the let's-get-real dept

We recently wrote about a video that suggested that a Viacom web property, Spike.com, was doing to Jonathan Coulton what Viacom was claiming YouTube/Google had done to it. As we noted in the post, the video played a bit fast and loose with the facts, so we were a bit skeptical of the whole thing. It later turned out that a Viacom exec pointed out to Coulton that, many years ago, he had (in passing) authorized the use of the video on iFilm, as part of an effort to get the video on VH1. Of course, he's also now realizing that due to the non-commercial use clauses of many of the Flickr images he used in the video (which is about Flickr), that he probably didn't have the right to put it on a commercial site.

This is the point where Viacom supporters do the happy dance and claim that this proves how wrong everyone was to jump on this story.

Except... not so fast. This little vignette actually supports YouTube's position a hell of a lot more than Viacom's. It shows just how complex and messy these issues can be -- such that there's no real way for some third party to judge whether or not it's infringing without knowing the details. Even the content creators themselves -- whether Coulton or Viacom -- often seem to get confused over the matter. And yet Viacom thinks that Google can hire 30,000 lawyers skilled in copyright law to review the 24 hours of video uploaded every minute on the site? When even the content creators themselves don't know?

Even if you could hire 30,000 experts in copyright law and fair use to analyze each and every video uploaded, it still wouldn't work out. In this case, Coulton gave the approval for the video, but even he's now realizing (years later) that the images in the video were restricted and shouldn't have been allowed on a commercial site. But he was trying to get the video on a "viral videos" program on VH1. VH1 is a commercial property too, right? So wouldn't that have been just as infringing? Or would that be fair use?

The whole point is that it's not at all easy to figure out these things. As a court in Australia recently noted, the determination of infringement is not a black or white thing:

Copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether.... users infringe copyright....

That's a key point in all of these discussions. Companies like Viacom like to claim that Google can easily figure out what is and what is not infringing, but there's no magic bullet or magic wand to do that. There's no way to know whether the content is properly licensed, or being uploaded by someone who has all the rights. There's no easy way to know if a court would find a work to be infringing or fair use. And dumping that decision-making onus on a third party service provider makes little sense no matter how you look at it. If there's an issue, it's between the copyright holders and the uploaders of the content. Bringing in a third party and demanding they police such things without the knowledge to do so simply makes no sense, and clearly is not what Congress intended with copyright law.

it is a pretty big assumption to think that all of viacom can communicate like the borg. what one part of the company is doing (with the legal advice it has gotten) may not be the same as other parts of the very huge company. attempting to paint viacom and its thousands of employees being on the same scale as youtube and its (at the time) handful of employees is a laughable concept. i would say it smacks of desperation, knowing that you tube is very likely to get a legal reaming here very soon.

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"it is a pretty big assumption to think that all of viacom can communicate like the borg. what one part of the company is doing (with the legal advice it has gotten) may not be the same as other parts of the very huge company. attempting to paint viacom and its thousands of employees being on the same scale as youtube and its (at the time) handful of employees is a laughable concept. i would say it smacks of desperation, knowing that you tube is very likely to get a legal reaming here very soon."
So what your saying is that it is to assume a huge company with large amounts of resources could not police its own content, but a small company with few resources should be able to. It seems that Viacom should be able to accomplish what it is sueing other to do in similar circumstances.

Sue them all

Viacom is useless except to sue people. Viacom is the the one suing Google and has to prove it in a court of law. That's the hard part. My lawyer friend says that 99% of a successful lawsuit is the location of the suit and the sympathy of the Judge. That all you have to do is find an area that likes your company and then sue. If you have a good name in your local area then the Judge will favor you. It has nothing to do with law just appearance. If the law was just then we wouldn't have to be releasing people constantly because of judicial and law enforcement errors. The biggest crime committed by the law enforcement community is the crime of bias or profiling.
As I grew up to be a man the best advice I ever got was from my Granny and she said: 'Don't ever trust Lawyers, Politicians or Police because they all lie for a living.'

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so you say that viacom should be able to perfectly control it's thousands of employees and contractors exactly at the same level that youtube and its 10 or so employees at the time could not be controlled? out of moms basement much?

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TAM, you are such an idiot. Do you even have a valid argument to make.

What we are saying is that Viacom should be able to better know which of its content is and isn't infringing than some individual or small business with no resources and no access to Viacom's internal records. What we are saying is that Viacom should be able to police its own content better than some individual or small entity should be able to police Viacom's content.

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so you say that google should be able to perfectly control it's millions of users at the same level that viacom and its thousands of employees at the time could not be controlled? out of moms basement much?

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it is a pretty big assumption to think that all of viacom can communicate like the borg. what one part of the company is doing (with the legal advice it has gotten) may not be the same as other parts of the very huge company

And yet it's okay to do that with Google?

attempting to paint viacom and its thousands of employees being on the same scale as youtube

I'm guessing you didn't even read this post, because it doesn't do that. In fact, it notes that, contrary to the earlier post, it *does not* look like Viacom did the same thing as YouTube.

I know you rush to get a post up as quick as possible slamming everything I say, but when your responses show you didn't even read the post in question, it makes you look pretty silly.

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so you say that viacom should be able to perfectly control it's thousands of employees and contractors exactly at the same level that youtube and its 10 or so employees at the time could not be controlled?

No, that's not what is being said at all, and you know it. What is being said is that there is no way for YouTube to identify and remove infringing content automatically. Even if you hired a huge team of people to watch every uploaded video, there would be no way for that team of people to know "this video is infringing, this one isn't".

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See, they don't really have to watch all of the content, they just have to use their psychic powers to filter out all the non infringing content and immediately direct themselves to the infringing content and remove that. It's that simple!!!